Shirley Kramer, Petitioner-appellee, v. Tom Price, Judge, County Criminal Court No. 5, and Carlthomas, Sheriff, Dallas County, Texas,respondents-appellants, 712 F.2d 174 (5th Cir. 1983)

This appeal from the grant of a writ of habeas corpus requires us to decide whether the Texas Harassment Statute under which the petitioner was convicted is void for vagueness in violation of the first and fourteenth amendments to the United States Constitution. We conclude that it is and affirm.

Shirley Kramer, the petitioner, was tried by a jury in state court and found guilty of harassment. Kramer and John Keiser lived together for several months during 1970. In 1971, Keiser married another woman, Anne, but Kramer continued to write to him frequently for three years following his marriage.¹  Six days after Anne Keiser returned home from the hospital with the couple's first-born child, the United States Postal Service delivered a postcard addressed to Mr. Keiser. Affixed to the back of the postcard was the following message quoted from a newspaper advertisement:

Baby Problem Solved!

--with this beautiful

ALL METAL

CASKET-VAULT COMBINATION

CRYPT a CRIB

Cincinnati, Ohio 45211² 

Based on this bizarre message, the State charged the petitioner with violating the Texas Harassment Statute, Tex.Penal Code Ann. § 42.07(a) (1). She was tried by a jury in state court, found guilty, and sentenced to six months imprisonment. The sentence, however, was suspended and she was placed on probation for six months. The Texas Court of Criminal Appeals, en banc, affirmed. Kramer v. State, 605 S.W.2d 861 (Tex.Cr.App.1980) (en banc).

After exhausting her state remedies, Kramer sought habeas corpus relief in federal district court. The court found the Texas Harassment Statute to be unconstitutionally vague and overbroad, declared it void on both grounds, and entered judgment granting the writ. On appeal, the State challenges both conclusions and argues that the Harassment Statute protects important privacy interests. We address only the contention that the statute is void for vagueness.

The Texas Harassment Statute, Tex.Penal Code Ann. § 42.07 provides:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient;

The State argues that § 42.07 is not vague because the statute's requirement of intent makes its application turn on the state of mind of the actor, and therefore ensures that the actor will have adequate notice of the proscribed conduct.

An enactment is void for vagueness³  under the due process clause of the fourteenth amendment if it fails to draw reasonably clear lines between lawful and unlawful conduct. Smith v. Goguen, 1974, 415 U.S. 566, 574-578, 94 S. Ct. 1242, 1247-1249, 39 L. Ed. 2d 605, 612-615. Vague statutes fail to provide citizens with fair notice or warning of statutory prohibitions so that they may act in a lawful manner. Connally v. General Const. Co., 1926, 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888, 890; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110, 115.

The infirmities of vagueness, however, extend beyond the lack of fair notice. The absence of a determinate standard gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law, and thus there is a danger of arbitrary and discriminatory enforcement. The Supreme Court recently defined the void-for-vagueness doctrine as follows:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'

Kolender v. Lawson, --- U.S. ----, ---- - ----, 103 S. Ct. 1855, 1858-59, 75 L. Ed. 2d 903 (1983) (citations omitted). See Hynes v. Mayor & Council of Borough of Oradell, 1976, 425 U.S. 610, 622, 96 S. Ct. 1755, 1761, 48 L. Ed. 2d 243, 254; Grayned v. City of Rockford, 1972, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227-28. See also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960). In the first amendment area, " [t]he very existence of ... [a] censorial power, regardless of how or whether it is exercised, is unacceptable." Int'l. Soc'y For Krishna Consciousness v. Eaves, 5 Cir. 1979, 601 F.2d 809, 822-23. When a statute is capable of reaching first amendment freedoms, the doctrine of vagueness "demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. at 573, 94 S. Ct. at 1247, 39 L. Ed. 2d at 612. See also Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. at 620, 96 S. Ct. at 1760, 48 L. Ed. 2d at 253; NAACP v. Button, 1963, 371 U.S. 415, 432-433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405, 418; Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960).

The State relies on Collection Consultants, Inc. v. State, 556 S.W.2d 787, 793-94 (Tex.Cr.App.1977), appeal dismissed, 1978, 436 U.S. 901, 98 S. Ct. 2228, 56 L. Ed. 2d 399, for the proposition that "annoy" and "alarm" are not vague terms. In that case, the Court of Criminal Appeals relied on earlier decisions upholding the constitutionality of Article 476, V.A.P.C., the predecessor to the current Texas Harassment Statute. Noting that there were no meaningful distinctions between the language of the old statute and its replacement, the court relied on these earlier cases to justify its conclusion that § 42.07 was not vague.⁴  We find the reasoning of Collection Consultants unpersuasive.

The Supreme Court struck down a statute using the word "annoy" in Coates v. City of Cincinnati, 1971, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214. The city ordinance at issue in Coates made it a criminal offense for three or more individuals to assemble on public sidewalks and conduct themselves in a manner which might annoy passersby. The Ohio Supreme Court held that the statute was not vague in the light of its well-understood dictionary definition:

The ordinance prohibits, inter alia, 'conduct ... annoying to persons passing by.' The word 'annoying' is a widely used and well understood word; it is not necessary to guess its meaning. 'Annoying' is the present participle of the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.

21 Ohio St.2d 66, 69, 255 N.E.2d 247, 249.

The Supreme Court rejected the Ohio Supreme Court's simple reliance on a dictionary meaning. The Court found two closely related flaws which rendered the statute void for vagueness. First, the Court recognized that some vagueness inheres in the word annoy:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

402 U.S. at 614, 91 S. Ct. at 1688, 29 L. Ed. 2d at 217. Second, the ordinance did not specify and the Ohio Supreme Court "did not indicate upon whose sensitivity a violation does depend--the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man". 402 U.S. at 613, 91 S. Ct. at 1688, 29 L. Ed. 2d at 217. The inherent vagueness in attempting to define what annoys people and the failure to specify whose sensitivities are relevant compelled the Court to conclude that the ordinance was vague.

We conclude that the Texas Harassment Statute suffers from the same infirmities as the ordinance in Coates. The Texas courts have made no attempt to construe the terms "annoy" and "alarm" in a manner which lessens their inherent vagueness.⁵  Of greater importance, the Texas courts have refused to construe the statute to indicate whose sensibilities must be offended. See Kramer v. State, 605 S.W.2d 861 (1980 Tex.Cr.App.); Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Cr.App.1977). Coates recognized that a statute is unconstitutionally vague when the standard of conduct it specifies is dependent on each complainant's sensitivity. Whereas Coates specified that a passerby's sensitivity must be offended, the statute in this case makes no attempt at all to specify whose sensitivity must be offended. In the absence of judicial clarification, enforcement officials, as well as the citizens of Texas, are unable to determine what conduct is prohibited by the statute.⁶ 

The State maintains that the Texas Harassment Statute is restricted to individuals who act with an intent to annoy. An intent requirement, it contends, ensures that the actor will have fair notice that his contemplated conduct is forbidden. We disagree. Specifying an intent element does not save § 42.07 from vagueness because the conduct which must be motivated by intent, as well as the standard by which that conduct is to be assessed, remain vague. Whatever Kramer's intent may have been, if she was unable to determine the underlying conduct proscribed by the statute, then the statute fails on vagueness grounds.

By failing to provide reasonably clear guidelines, § 42.07 gives officials unbounded discretion to apply the law selectively and subjects the exercise of the right to speech to an unascertainable standard. Accordingly, we hold that the Texas Harassment Statute is unconstitutional on its face for vagueness.⁷ 

AFFIRMED.

ALVIN B. RUBIN, Circuit Judge, dissenting:

The standard to which my brethren correctly adhere is that a law is unconstitutionally vague only if it fails to make reasonably clear the distinction between what is forbidden and what is lawful conduct. The Texas law seems to me to meet that test. It proscribes only conduct that has six characteristics. What is made unlawful is:

3. In vulgar, profane, obscene, or indecent language, or in a coarse and offensive manner

4. That intentionally, knowingly, or recklessly

6. The recipient.

In essence my brethren find that the statute is vague because it does not define two plain English words that are used in their ordinary sense. It is not necessary for the lawmaker, I submit, to define words in common usage if the statute uses them according to their everyday meaning, not as terms of art. We daily enforce federal statutes using such words as "willfully sets fire to"¹ , "harbors or conceals"² , "interferes with any person"³ , "false information"⁴ , and a host of other like terms. Merely thumbing through the United States Code, we find that Congress uses, as indeed it should, short words of Anglo-Saxon origin that are not defined simply because there is no need for definition unless Congress intends to expand or to restrict their ordinary meaning. Indeed, two federal statutes that proscribe harassing telephone calls in the District of Columbia, in interstate or foreign communication and in the course of debt collection, themselves use the word "annoy" without further definition to characterize the purpose of the forbidden call.⁵  If there is need for a definition of the words that trouble my brethren, any desk-size dictionary will do. The one I use, Webster's Seventh New Collegiate, has explication enough:

annoy vb [ME anoien, fr. OF enuier, fr. LL inodiare to make loathsome. fr. L in + odium hatred -- more at ODIUM] vt 1 : to disturb or irritate esp. by repeated acts : VEX 2 : HARASS, MOLEST vi : to be a source of annoyance -- an.noy.er n

syn VEX, IRK, BOTHER: ANNOY implies a wearing on the nerves by persistent petty unpleasantness; VEX implies greater provocation and stronger disturbance and usu. connotes anger but sometimes perplexity or anxiety; IRK stresses difficulty in enduring and resulting weariness or impatience of spirit; BOTHER may imply either a bewildering or upsetting but always suggests interference with comfort or peace of mind syn see in addition WORRY

We ought to praise the legislators who write so clearly and concisely, in terms that can be readily understood by those untutored in legal intricacies. We certainly should not condemn as unconstitutional their lack of complexity and convolution.

My brethren declare the statute invalid "in the absence of any judicial clarification." While the Texas Court of Criminal Appeals has not found it necessary to elaborate on the statutory language, it has repeatedly held that the words "annoy" and "alarm" in this statute and its predecessor are not vague and standardless because they do not "fail to give to a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Collection Consultants, Inc. v. State, 556 S.W.2d 787, 794 (Tex.Cr.App.1977) (on rehearing). See Kramer v. State, 605 S.W.2d 861, 866 (Tex.Cr.App.1980) (on rehearing en banc); LeBlanc v. State, 441 S.W.2d 847, 851 (Tex.Cr.App.1969). I think that court is correct.

Our course is not determined by Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). The vagueness in the Cincinnati ordinance did not result from the use of the word "annoy" but from the imprecision of the phrase in which it appeared, "conduct themselves in a manner annoying to persons passing by...." There is a difference between conduct that might annoy some person who happens to walk by a given spot, a person who might be so young or old as to be unusually sensitive, devout, or fastidious, and a communication using vulgar, profane, obscene, or indecent language that is intentionally designed to annoy a particular person. If the phrase used by the City of Cincinnati is juxtaposed with the one used by the State of Texas, a marked difference in specificity is evident.

It might "annoy" some persons passing by if I stood on a street corner and read the first and the fifth amendments to the Constitution in a normal tone of voice. It is almost impossible to determine what conduct is so inoffensive that it cannot annoy anyone who may pass by, whatever his or her age or sensibility. Moreover, the state of the communicator's mind is relevant. The Texas statute proscribes only annoying a specific person when using vulgar, profane, obscene, or indecent language or a coarse and offensive manner of communication purposely or recklessly. This is clear enough to tell the untutored what is forbidden. What is unlawful is not a communication that might offend any of the myriad of persons who passes, regardless of the communicator's purpose; the statute limits unlawful conduct to what not only "may" but is also intended to annoy or uttered heedless of its capacity to annoy a particular person.

The Texas statute is, therefore, significantly different from the Cincinnati ordinance: If the communicator knows the recipient, he will be accountable for conduct intended to offend the recipient's known sensibilities. Even if the communicator does not know the recipient (e.g., if he is a crank caller who harasses a victim at a randomly chosen phone number), he will be accountable for conduct that recklessly disregards its effect on the sensibilities of the hypothetical reasonable person. The possibility of arbitrary or discriminatory enforcement is minimal because the statute requires that the state prove not only that the recipient was annoyed or alarmed but also that the communicator intentionally or recklessly caused that perturbation. The focus of the statute on two identifiable parties, and the requirement that the accused's conduct be tailored to evoke a response in the victim or be reckless in its disregard of that impact removes the indefiniteness that was fatal to the ordinance in Coates.

Ms. Kramer also attacks the Texas Harassment Statute as facially overbroad. Although my brethren do not find it necessary to reach that issue, I discuss it because it is another basis for the charge of unconstitutionality. Ms. Kramer does not argue that her own conduct was protected. Her argument is merely that the statute proscribes both protected and unprotected speech, and that, because it may possibly permit unconstitutional applications, we should strike it down without reaching the question whether it was unconstitutionally applied in her case. The history, development, and curtailment of the overbreadth doctrine have been widely discussed,⁶  and it is not necessary here to retrace the decisional path. A full decade ago in Broadrick v. Oklahoma,⁷  the Court introduced the concept of "substantial overbreadth" as a limitation on earlier overbreadth applications and suggested that the function of the facial overbreadth doctrine "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct .... To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."⁸  While Broadrick was directed at expressive conduct and not "pure" speech, it has been properly interpreted as requiring caution before even regulation of speech alone is condemned on the sole ground of overbreadth.⁹ 

While Ms. Kramer was convicted of sending Mrs. Keiser a written message of undeniably expressive content,¹⁰  the proscription of her communication was warranted. The state has a compelling interest in regulating talk or writing that has no objective but personal harassment of the recipient. This was an utterance that was no part of any exposition of ideas and no social value as a step to the truth.¹¹  In this respect, it was like fighting words,¹²  or obscenity,¹³  or child pornography.¹⁴  A jury could properly find beyond reasonable doubt that the postcard was intended to annoy and to alarm.

It so clearly lies within the power of the legislature to forbid such a writing to a victim thus maliciously and callously selected that I would not sustain Ms. Kramer's attack on the statute on the basis that the law might conceivably be applied to some other person for a constitutionally protected communication when there is no evidence of any instance in which it has been so applied and the risk of improper applications appears remote in relation to the statute's legitimate sweep. Compare United States v. Margiotta, 688 F.2d 108, 129 (2d Cir. 1982), cert. denied, --- U.S. ----, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983) (conduct charged in mail fraud indictment was within power of government to proscribe and application of statute in this case would not deter protected political activities in other contexts). If there be overbreadth, it is insubstantial.

For these reasons, I would reverse the decision below and I, therefore, respectfully dissent.